28 April 2026
Former Passenger Rail Agency board members seeking to review and set aside findings of corruption against them made by the Zondo Commission may have to withdraw their application. Illustration: Bronwyn Webb
Former Passenger Rail Agency (PRASA) board members, who are seeking to review and set aside findings of corruption against them made by the Zondo Commission, may have to withdraw the application they filed in the Johannesburg High Court in 2022.
Retired Chief Justice Raymond Zondo, who chaired the commission of inquiry into state capture, says they have not obtained the requisite permission in terms of the Superior Courts Act to sue him. A section of the Act prohibits civil proceedings against any judge except with the consent of the relevant head of court.
In a letter to current Chief Justice Mandisa Maya, he says the applicants are only now, belatedly, applying for her consent to institute civil proceedings against him.
Zondo says that the application for consent, dated April 2026, is way out of time and they should have obtained permission prior to instituting the case. As such, the case against him is invalid and void.
“I am dealing with this request myself, and not through attorneys. Once a decision has been taken on this request, I may instruct attorneys if there is a need,” Zondo wrote.
The “only solution to the dilemma” is for the applicants to withdraw the review application and “tender my costs in those proceedings”, he wrote.
The applicants include former CEO Lucky Montana and board members Sfiso Buthelezi, Bridgette Gasa, Nkosinathi Khena and Mmatebogo Nkoenyane.
In Zondo’s report, they were all implicated in plundering the state-owned entity. The basis of their review application is that they were not given an opportunity to counter the allegations against them.
The board members initially cited only the commission and PRASA as respondents. However, belatedly they cited Zondo as the third respondent, without the permission of the Chief Justice.
Activist Group #UnitedBehind has also been given judicial permission to join the proceedings as a respondent, meaning it can present and challenge evidence should the case go ahead.
#UniteBehind is also strongly opposing the last minute bid for permission to sue Zondo. In a letter to the Chief Justice, its attorneys, Lopes Attorneys, noted that three years had elapsed since the review application was filed. There is also no case law precedent or grounds to now grant condonation.
A recent case, in which former presidents Jacob Zuma and Thabo Mbeki attempted to remove Judge Sisi Khampepe as the chair of the Judicial Commission of Inquiry to investigate political interference in the investigation and prosecution in Truth and Reconciliation Commission (TRC) proceedings, is instructive. That matter had been struck from the roll because Zuma and Mbeki had not sought the required permission to prosecute the case against Khampepe.
“The purpose of the section is to protect the independence of the judiciary and to protect against non meritorious litigation. The present application has no merit, is vexatious and void … it is the exact sort of proceedings the section is geared towards preventing,” wrote Lopes Attorneys.
In their letter to the Chief Justice, the lawyers for the applicants, RMT Attorneys, say they were under the impression that consent was not required because Zondo was cited in his capacity as chair of the commission, rather than performance of his judicial functions.
However “recent developments” had revealed “divergent views” on the issue and there were conflicting judgments on the issue.
RMT Attorneys also complained that it had taken Zondo and the commission an entire year to file the record of proceedings. During this time all parties had been aware that Zondo had been cited as the chair and had not raised any objections.
The Chief Justice has yet to make a decision on the matter.
